(1) Whether differences among individual class members may be ignored and a class action certified under Federal Rule of Civil Procedure 23(b)(3), or a collective action certified under the Fair Labor Standards Act, where liability and damages will be determined with statistical techniques that presume all class members are identical to the average observed in a sample; and (2) whether a class action may be certified or maintained under Rule 23(b)(3), or a collective action certified or maintained under the Fair Labor Standards Act, when the class contains hundreds of members who were not injured and have no legal right to any damages.

Adam Zimmerman has written a really interesting post on the legacy of the 9/11 Victim Compensation Fund and the subsequent litigation over the 9/11 attack. He focuses on the rise of databases and registries designed to improve the disposition of individual claims. The post can be found here, and Adam will continue to blog at Prawfsblawg for the rest of the month.

The Supreme Court has just granted cert in Campbell-Ewald Company v. Gomez on the following questions, the first two being relevant to an important ongoing circuit split in class action law:

(1) Whether a case becomes moot, and thus beyond the judicial power of Article III, when the plaintiff receives an offer of complete relief on his claim; (2) whether the answer to the first question is any different when the plaintiff has asserted a class claim under Federal Rule of Civil Procedure 23, but receives an offer of complete relief before any class is certified; and (3) whether the doctrine of derivative sovereign immunity recognized in Yearsley v. W.A. Ross Construction Co., for government contractors is restricted to claims arising out of property damage caused by public works projects.

You can find more on SCOTUSBLOG. It used to be that the courts understood that a person purporting to represent a class had a special duty to that class - an ethical duty - to pursue the claims with fidelity to the other class members. This is why courts ask whether a class member is typical of other class members and adequate to represent them. A class member who is offered a personal settlement and refuses it so that he can represent his fellows is following through on that duty to the rest of the class members. It also used to be that the courts appreciated that some people bring suits for vindication or to change the law, even if they will only receive nominal damages. An offer of settlement does not achieve these things - it cannot achieve them - because vindication and legal effect requires a judge to issue a judgment, which only a court can issue. In other words, an offer of full compensation is not full relief, because it does not include a judgment. Most people still prefer a guarantee of compensation to an uncertain outcome in a judgment, but that does not mean that they are required to accept something less than a court issued judgment about their case. The question of mootness posed in Gomez does not require looking at Rule 23, but Rule 23's requirements and the due process requirements of class action caution against a mootness ruling in Gomez that would vitiate the duty that a class representative owes his fellow class members. This is because to find that the case can be mooted by a mere offer of settlement would require an inference that the class representative may accept that offer with impunity because he owes no duty to continue with the case on behalf of others after he has been offered full monetary relief.

It is also worth noting that Coleman, Liz Porter and David Marcus have organized the First Annual Civil Procedure Workshop, where members of the Class Action Rules Subcommittee of the Rules Advisory Committee will appear to discuss the proposed Rule 23 amendments. The workshop looks fantastic and is definitely worth attending!

There is an interesting column in Bloomberg Business about the ongoing Chevron/Ecuador litigation. It discusses a pending appeal before the Second Circuit over Chevron's use of civil RICO to enjoin the enforcement of the Ecuadorian judgment against them. The column discusses, albeit briefly, the possible ramifications of a ruling allowing defendants to enjoin judgments by alleging that the plaintiffs' attorneys engaged in a scheme of extortion in violation of RICO. For a rundown of the oral argument, which was conducted on April 20th, check out this post here.

On February 27, 2015, the Committee on the Judiciary, Subcommittee on the Constitution and Civil Justice, held a hearing on the state of class actions post-CAFA. The witnesses' lack of ideological diversity (with Professor Moore as a single exception) is extremely troubling. The committee heard testimony from: Andrew Pincus (Partner, Mayer Brown, U.S. Chamber Institute for Legal Reform), John Parker Sweeney (President, DRI - the Voice of the Defense Bar), Jessica D. Miller (Partner, Skadden Arps), and Professor Patricia Moore (St. Thomas Univ. School of Law).

A video of the testimony is available here, and Professor Moore has posted her written remarks on SSRN.

I want to point out an interesting article by Malcolm Gladwell in the New Yorker that looks back at the litigation surrounding the Ford Pinto case. Although the article talks about the criminal prosecution and some of the legal issues briefly, it focuses on the engineers in the case and their ex ante decisions to issue recalls. In my view, the ex ante decisions of engineers, and their inherent difficulty, do not get nearly enough attention in the media, even though the defendant's liability in mass tort cases always hinges on these decisions. A good read overall.

Yale Law Journal is publishing a note by Geoffrey Shaw on the latest hot topic in class litigation, class ascertainability. Here's the SSRN abstract:

In recent years, federal courts have been enforcing an “implicit” requirement for class certification, in addition to the explicit requirements established in Rule 23 of the Federal Rules of Civil Procedure. The ascertainability requirement insists that a proposed class be defined in “objective” terms and that an “administratively feasible” method exist for identifying individual class members and ascertaining their class membership. This requirement has generated considerable controversy and prevented the certification of many proposed classes. The requirement has taken a particular toll on consumer class actions, where potential class members are often unknown to the representative plaintiffs, often lack documentary proof of their injury, and often do not even know they have a legal claim at all.

This Note explores the ascertainability requirement’s conceptual foundations. The Note first evaluates the affirmative case for the requirement and finds it unpersuasive. At most, Rule 23 implicitly requires something much more modest: that classes enjoy what I call a minimally clear definition. The Note then argues that the ascertainability requirement frustrates the purposes of Rule 23 by pushing out of court the kind of cases Rule 23 was designed to bring into court. Finally, the Note proposes that courts abandon the ascertainability requirement and simply perform a rigorous analysis of Rule 23’s explicit requirements. This unremarkable approach to class certification better reflects what the Rule says and better advances what the Rule is for.

Our friends at the FJC and Administrative Office of the U.S. Courts, Emery Lee, Catherine Borden, Margaret Williams, and Kevin Scott have posted their latest empirical analysis of multidistrict litigation on SSRN. Here's the abstract:

Following the judiciary's experience with aggregate litigation in the 1960s, Congress established a procedure for the transfer of related cases to a single district court for coordinated pretrial proceedings. Originally designed to achieve efficiencies associated with coordinated discovery, the multidistrict litigation (MDL) process evolved from a rather modest starting point to become a central part of aggregate litigation in the federal courts today. Despite its importance, however, there is little empirical research on the MDL process. This article seeks to fill this gap in the empirical literature by addressing a few central questions about the work of the Judicial Panel on Multidistrict Litigation (Panel). Using a unique database, we examine how that body decided motions to centralize multidistrict litigation. We find, most importantly, that the Panel became more likely to order centralization of proceedings over time, after controlling for other factors. That trend is not, however, apparent in the most recent years' data. We also find, all else equal, that the Panel is more likely to centralize a proceeding including class allegations, and more likely to centralize proceedings raising certain kinds of claims.

In conjunction with its annual meeting each year, the American Law Institute hosts a CLE the day before the meeting begins. This year, there are two programs that may be of interest to readers on Sunday, May 17, 2015:

1) Changes for Federal Rule of Civil Procedure 23? An Open Forum with the Rule 23 Subcommittee of the Advisory Committee on Civil Rules; and

The panels run from 1:30-3:00 p.m. and 4:00-6:00 p.m., respectively and are located in the Ritz-Carlton Hotel in Washington, D.C. I understand that panel members on the second panel will include Bob Klnonoff, Elizabeth Cabraser, Judge Diane Wood, Judge Lee Rosenthal, Sam Issacharoff, John Beisner, and myself among others. Hope to see you there!

There's been a lot of chatter over the past few years about the greater use of issue classes. The Rule 23 Subcommittee in its recent report (p. 41) indicated that issue classes top its agenda for possible reform and there's been a greater willingness to rely on Rule 23(c)(4) among the circuit courts over the last few years. Much of the scholarship on issue classes thus far, however, has focused on how to use issue classes in conjunction with Rule 23(b)(3)'s predominance requirement. Professor Laura Hines (Kansas) has, for instance, written a series of articles on the topic and there have been several debates in symposium pages, such as DePaul's 2013 symposium.

Whatever side of the debate one adheres to on the to-be-or-not-to-be question, the courts are embracing issue classes. Thus, there remains much work to be done on discerning which issues should qualify for certification, how to think about Seventh Amendment Reexamination Clause questions, and how to compensate plaintiffs' attorneys who initiate issue classes.

I've recently written a paper on issue classes that takes some steps toward fleshing out these problems. The paper is long since it's meant to be a one-stop shop for judges and attorneys on the subject, but here are the critical points worth underscoring:

First, one of the main difficulties of our system is that the focus in massive lawsuits has shifted to the ways in which the plaintiffs are dissimilarly situated, even when the defendant's conduct is uniform. Take the GM ignition switch debacle or the Toyota acceleration cases, for example. Corporate actions are nonindividuated; it doesn't make sense to litigate what GM or Toyota did in 40,000 different cases. (Draft pp 5-8) But defendants have successfully shifted the procedural focus to how their behavior affected claimants, which tends to defeat class certification because common questions do not predominate over individual ones. The issue class has the potential to recapture what is common to the plaintiffs: defendant's conduct--at least so long as that conduct is nonindividuated. One can capture this notion by divvying up the legal elements in any claim or defense as "conduct components," which concern the defendant's conduct, or "eligibility components," which concern a plaintiff's eligibility for relief. (Draft pp 15-29)

Second, by embracing the standard suggested by the ALI's Principles of the Law of Aggregate Litigation, courts can ease the supposed tension (to the extent any remains) between Rule 23(c)(4) and Rule 23(b)(3). (Draft pp 31-32) Courts should certify issue classes where resolving the issue would "materially advance the resolution of multiple civil claims by addressing the core of the dispute in a manner superior to other realistic procedural alternatives, so as to generate significant judicial efficiencies." (Principles, 2.02(a)(1), 2.02 cmt. a, 2.08, 2.08 cmt. a) Predominance is embedded in the "materially advance" language and superiority is included as a condition that certifying the issue would be "superior to other realistic alternatives" such that it "generate[s] significant judicial efficiencies." Moreover, the courts themselves seem to have reached a general consensus on this matter, with even the Fifth Circuit embracing issue classes in In re Deepwater Horizon, 739 F.3d 790, 804 (5th Cir. 2014). (Draft p. 30)

Third, courts must figure out a way to compensate (and thus incentivize) plaintiffs' attorneys. This is perhaps the trickiest part because of both the lack precedent and doctrinal hurdles such as Lexecon. Lexecon presents a special challenge in multidistrict litigation cases where issue classes might prove most useful. Nevertheless, one need not invent a theory out of whole cloth. Charging liens and the common-benefit doctrine provide sound analogies for fashioning a coherent path forward. (Draft pp 42-50)

Finally, there are some hurdles to making issue classes stick, such as preclusion doctrines, adequate representation, and the Seventh Amendment Reexamination Clause. Thus, the paper concludes by suggesting solutions to these problems and arguing that preclusion can provide a way to coordinate dispersed public and private regulators.

You can find the surprising opinion here. The crux of the opinion is the last paragraph:

Cigarette smoking presents one of the most intractable public health problems our nation has ever faced. It was not so long ago that anyone would walk a mile for a Camel: cigarette smoke once filled movie theaters, college classrooms, and even indoor basketball courts. For fifty years, the States and the federal government have worked to raise awareness about the dangers of smoking and to limit smoking’s adverse consequences to the greatest extent possible, all without prohibiting the sale of cigarettes to adult consumers. To that end, the State of Florida may ordinarily enforce duties on cigarette manufacturers in a bid to protect the health, safety, and welfare of its citizens. But it may not enforce a duty, as it has through the Engle jury findings, premised on the theory that all cigarettes are inherently defective and that every cigarette sale is an inherently negligent act. So our holding is narrow indeed: it is only these specific, sweeping bases for state tort liability that we conclude frustrate the full purposes and objectives of Congress. As a result, Graham’s Engle-progeny strict-liability and negligence claims are preempted, and we must reverse the District Court’s denial of judgment as a matter of law. For these reasons, the judgment of the District Court is REVERSED.

Perry Cooper, of the BNA Class Action Litigation Report, published a special report yesterday titled "Issue Classes Swell in Consumer Suits: Are Potential Rewards Worth the Risk?" A subscription is required to read the full article, but it does a nice job of portraying different points of view on the topic - John Beisner and Jessica Miller (Sadden Arps) for the defense, Gary Mason (Whitfield Bryson & Mason) for the plaintiffs, and some of my own views as an academic.

Issue classes have been on my mind for awhile now as well as the minds of many others--the Rule 23 Subcommittee has indicated that the topic tops their list for potential rule changes. As such, I've been working on an article titled "Constructing Issue Classes." I'm still tweaking it, so it's not available for public consumption yet, but for those interested in the topic, here's the gist of it:

Issue classes under Rule 23(c)(4) have the potential to adjudicate collectively what actually unites plaintiffs: defendant's uniform conduct. One can separate the elements of any cause of action into "conduct elements" that relate to the defendant's conduct--what the defendant knew, when the defendant knew it, etc.--or "eligibility elements" that relate to the plaintiff's eligibility for relief--specific causation, damages, etc. When defendant's conduct toward the plaintiffs is uniform, as it was for example in the smelly washing machine cases, then adjudicating elements relating to that conduct collectively can even out resource imbalances between plaintiffs' attorneys and defendants and reduce the possibility of inconsistent verdicts.

As you may imagine, a lot rides on that one trial. Issue classes work by generating two-way preclusion in follow-on cases. In the Ohio "smelly washer" trial against Whirlpool, the defense verdict meant that defendants could preclude class members from relitigating those same issues in subsequent cases. (Granted, the class was limited to Ohio purchasers, but did include some 100,000 consumers.) The high stakes suggest that anytime courts certify an issue for class treatment they should be prepared to allow an interlocutory appeal on the merits (not just the certification question as Rule 23(f) permits). It also means that courts shouldn't certify trivial issues for class treatment. As the ALI in its Principles of the Law of Aggregate Litigation suggest, the issue class should "materially advance the resolution of the claims," which would be the case with regard to most conduct-related questions.

A number of law review articles have noted the issues inherent in treating class members' failure to opt out as consent to the court's personal jurisdiction or as agreement to a proposed class settlement. Missing from the existing analyses, however, is the "big picture" -- the reality that class action silence is layered, resulting in silence that is repeatedly and inappropriately compounded. At each and every step in class action litigation, absent class members are not just expected, but effectively encouraged, to remain silent. Moreover, at every step, courts interpret class members' silence as consent. The ultimate result is a "piling on" of consents: the expected and encouraged silence is deemed to constitute consent to the filing of the class suit and consent to personal jurisdiction and consent to be bound to any resulting class judgment and consent to the proposed class settlement and approval of the proposed settlement's terms and conditions. Yet this compounded effect occurs under highly ambiguous circumstances, where arguably the most sensible interpretation of class members' silence is not consent, but confusion. The multiple and contradictory meanings of silence render it unreasonable to equate the failure to opt out with consent. The fallacy of repeatedly ascribing consent to highly ambiguous silence should be recognized as a due process danger that potentially can deprive class members of property rights and their day in court.